Editor's Note :

We expect one or more decisions in argued cases on Wednesday at 10 a.m. We will begin live-blogging at approximately 9:45 The Court also has confirmed that the audiotape of Wednesday’s hearing in King v. Burwell will not be released on that day, but on Friday, as is usual.Wednesday's live blog will be available here.

The Supreme Court granted certiorari in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius to resolve a question of statutory construction: Does the Religious Freedom Restoration Act of 1993 (RFRA) entitle a for-profit corporation to an exemption from the requirement of providing employees with health coverage that includes contraception, on the ground that the owners of the corporation have religious objections to providing such coverage? That is an important question that the other participants in this symposium and the Justices themselves are now considering.

In this essay, however, I want to ask an antecedent question: Why is RFRA constitutional as applied to the federal government? In particular, I want to focus on a separation-of-powers objection to RFRA that the Court has never fully considered. Before coming to that point, though, I shall distinguish three other sorts of constitutional objections that have been made against RFRA.

First, as applied to the federal government, RFRA falls within Congress’s enumerated powers, notwithstanding the Supreme Court’s decision in City of Boerne v. Flores. There the Court held that, as applied to states and their subdivisions, RFRA was not a valid exercise of Congress’s power to enforce the Fourteenth Amendment. Because RFRA as applied to state and local government cannot plausibly be understood as an exercise of any other enumerated power, it was effectively held invalid under the Tenth Amendment. But as a limitation on federal power, Congress clearly had the power to enact RFRA, because in that context RFRA is simply the withholding of federal power. When it provides exceptions to laws passed under the Taxing Power, RFRA (un)exercises the Taxing Power; when it provides exceptions to laws passed under the Commerce Power, RFRA (un)exercises the Commerce Power; and so forth.

Second, concurring in Boerne, Justice Stevens opined that RFRA violates the Establishment Clause because it favors religion over non-religion. No other Justice addressed that issue, however, and in Cutter v. Wilkinsonthe Court unanimously rejected an Establishment Clause challenge to the Religious Land Use and Institutionalized Persons Act (RLUIPA). Justice Ginsburg wrote for the Court that RLUIPA did not grant religious persons special benefits but merely lifted government-created burdens. That should not have been a fully satisfactory response to the Establishment Clause objection, because it fails to answer the question of why the government can lift burdens it has created for people with religious scruples but not for people with other sorts of scruples. Nonetheless, Cutter pretty clearly forecloses an Establishment Clause challenge to RFRA because RFRA is materially similar to RLUIPA.

Third, shortly after the Supreme Court’s decision in Boerne, a student note argued that RFRA was invalid even as to the federal government because Congress lacks the authority to amend the entire U.S. Code in one fell swoop. According to the author of the note (who was my student at the time), by purporting to amend the U.S. Code wholesale, RFRA accomplished through ordinary legislation what the Constitution’s Article V permits to be accomplished only through an amendment: reversing the Supreme Court’s construction of the First Amendment in Employment Division v. Smith. In my view, this argument proves too much, unless one is also prepared to say that statutes like the Dictionary Act — which defines terms for the U.S. Code on a wholesale basis — are also invalid. Absent the violation of some external norm, as in a case like United States v. Windsor, in which the Court invalidated Section 3 of the Defense of Marriage Act on equal protection grounds, there is no constitutional bar to Congress amending its own statutes on a wholesale basis, even if the effect can in some respects be said to mimic what might alternatively be accomplished via a constitutional amendment.

If the foregoing three objections were all that could be said against the constitutionality of RFRA as a limitation on federal action, then it would be hard to quarrel with the Supreme Court’s having taken the issue for granted in a unanimous decision finding a right to a religious exception to the application of the federal Controlled Substances Act to a hallucinogenic tea in Gonzales v. O Centro Espirita Beneficenteuniao do Vegetal. Yet there remains one more objection to RFRA that the Court has not considered.

Justice Scalia’s opinion in the Smith case offered a number of grounds for the conclusion that the Free Exercise Clause does not entitle religious objectors to exceptions from neutral laws of general application, but one crucial piece of his argument for the Court was that judges are simply not competent to make the sorts of judgments needed to administer an exceptions regime. The clearest expression of this view appears in footnote 5, in which he states, in response to an argument offered by Justice O’Connor in her concurrence in the judgment: “it is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice.” But the point is also plain enough in the text of the Smith opinion, where Justice Scalia states that it is simply not “appropriate for judges to determine the ‘centrality’ of religious beliefs.”

It is not entirely clear which partof the ConstitutionJustice Scalia (and four other Justices) thought would be violated by judges weighing the importance of general laws against the significance of religious practice, or by having judges determine the centrality of religious beliefs. The claim appears to sound in anti-Establishment principles. It is a cousin of the principle that courts should not pass judgment on whether religious propositions are true or false.

But Justice Scalia takes a very narrow view of the Establishment Clause in other contexts – for example, in his concurring opinion in Van Orden v. Perry, in which he contends that “there is nothing unconstitutional in a State’s favoring religion generally, honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments.” Thus, it is hard to believe that he would base the Smith rule on anti-Establishment principles without even saying so. And he did not join Justice Stevens in the latter’s anti-establishmentarian concurrence in Boerne.

Moreover, quite apart from how it would fit with Justice Scalia’s other views, the opinion in Smith itself cannot be read to condemn religious exceptions as violating the Establishment Clause. The opinion specifically approves ofdemocratically accountable bodies granting specific religious exceptions. If the balancing needed to decide whether an exception was warranted violated the Establishment Clause, it would violate that Clause regardless of which government officials – legislators, executive officials, or judges – did the balancing.

Accordingly, we might read the Smith majority opinion to say that the plaintiffs were asking the Court to perform a non-judicial task. In this view, Article III – or perhaps separation of powers – makes judges especially unsuitedfor this sort of balancing. Justice Scalia’s disapproval of balancing in Smith thus calls to mind his disapproval of balancing generally, both in his academic writing and in his work on the Court,as when he complained that the Court’s dormant Commerce Clause balancing test is “like judging whether a particular line is longer than a particular rock is heavy.”

If Smith does rest on some principle that the Constitution forbids courts from weighing the importance of a religious practice against the importance of a general law, then RFRA would be invalid under this principle, for Congress has no power to require the courts to undertake a non-judicial task. Just as Congress cannot authorize the Court to hear cases in which the plaintiff lacks standing or cases that would call for an advisory opinion, so too, in this view, Congress cannot require the Court to apply a test that the Constitution makes the courts incompetent to apply.

Why, then, does the Court apparently think that it can apply RFRA notwithstanding Smith‘s pronouncement that the application of the compelling interest test to weigh religious freedom against government interests is unconstitutional? Consider five possibilities, which are not meant to be mutually exclusive.

First, it is conceivable that the Court has not explained how RFRA is consistent with Smith‘s declaration that courts cannot balance religion against state interests because the issue has not been squarely presented to the lower courts and preserved on appeal. If so, then the Court will apply RFRA in Hobby Lobby as well, and will continue to apply RFRA without addressing this issue unless and until some case squarely presents it.

Second, one might read Smith to say that weighing religious freedom against government interests is very difficult for judges, and generally something that they should try to avoid, but not that doing so is unconstitutional. This reading is a bit difficult to reconcile with the adamancy of the Smith pronouncements, but supported by the fact that the Smith Court does not expressly say that it would be unconstitutional for the courts to engage in the “horrible” balancing, and the absence of any statement of what part of the Constitution such balancing would violate.

Third, perhaps the weighing that the Smith Court thought was forbidden under the Free Exercise Clause is different from what RFRA requires. Justice Scalia’s chief objection in Smith appeared to be to the necessity for determining whether a practice is “central” to a person’s religion, but RFRA focuses instead on whether the law “substantially burdens” religious practice, a test that does not expressly call for a centrality inquiry. But given that RFRA purports to “restore” the very pre-Smith test that Smith rejects, and that Justice Scalia’s Smith opinion indicates that this test can avoid swamping the government with exception requests only if it includes a tacit inquiry into centrality, this approach would require a substantial retreat from the Smith principle under discussion.

Fourth, we may be witnessing such a retreat. Smith divided the Court more or less on ideological lines, with liberal Justices favoring an exceptions regime and conservative Justices opposing one. Since then, liberals generally have continued to promote religious exceptions, and conservative hostility to them has reversed. Outside of the courts, that trend began with RFRA itself, which passed with overwhelming bipartisan support. It has accelerated in recent years, as conservatives have come to embrace religious exceptions from laws forbidding sexual orientation discrimination and, as Hobby Lobby itself illustrates, laws that impose obligations respecting abortion or contraception. Arguably, the Supreme Court’s unanimous decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, finding that the First Amendment requires a broad “ministerial exemption” from federal anti-discrimination law, shows that the bipartisan approval of religious exceptions has now taken over the Court itself. Although the Hosanna-Tabor Court distinguished rather than overruled Smith, the cases stand in considerable tension, as I discussed on my blog when the former was handed down.

That leads me to my fifth and final possibility: Perhaps a majority of the Court has come to think that Smith was wrong in claiming that the crafting of religious exceptions from generally applicable laws is inconsistent with the judicial role. If so, that would be welcome news, because the claim never had much going for it. As noted above, the First Amendment grounds for saying that balancing is forbidden seem quite weak (because the Smith Court allows legislators to do the balancing on a law-by-law basis), while Justice Scalia’s general hostility to balancing is surely not a constitutional principle. Indeed, based on traditional iconography of the scales of justice, it would seem that, notwithstanding Justice Scalia’s objections, judges are especially well suited to engage in balancing.

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. In case there are opinions, we will be live blogging both Tuesday and Wednesday. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]